IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 4325 of 2023

In the matter of:

An  application  under  article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

      AND

In the matter of:

BC Union Company Limited

                  ………… Petitioner.  -Versus-

Government  of  the  People’s  Republic  of Bangladesh, represented by the Secretary, Health  Services  Division,  Ministry  of Health  and  Family  Welfare,  Bangladesh Secretariat, Abdul Gani Road, Dhaka,and others,

... Respondents.

Mr. Mahbub Shafique,Advocate with

Mr. Sifat Mahmud, Advocate

           …For the petitioner. Mr. Bepul Bagmar, D.A.G. with

Mr. Md. Delwar Hossain, A.A.G.

 …For respondent No.3 Mr. Syfuzzaman Advocate with

Mr. Md. Riad Mahmud, Advocate and

Mr. Tanvir Ahmed Siddique, Advocate

..For Respondent No.4.

Judgment on: 15.07.2024

Present:

Mr. Justice Md. Khasruzzaman

And

Mr. Justice K M Zahid Sarwar

Md. Khasruzzmaman, J:

In an application under article 102 of the Constitution, on 04.04.2023  Rule  Nisi  under  adjudication  was  issued  in  the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause  as  to  why  a  direction  should not be given upon  the

respondents to pay the petitioner the price of 10,00,000(ten lac) pieces of Disposable Protective Mask at the rate of TK.27.50 per piece; 1,00,0000 (one lac) pieces of Disposable Protective Suit at the rate of TK. 1700.00 per piece; 2,00,000 (two lac) pieces of Goggles at the rate of TK.209.00 and 1600 (sixteen hundred) pieces of Dead Body Carrying Bag at the rate of TK. 1850.00  per  piece  amounting  to  total  TK.  24,22,50,000.00 (Twenty  Four  Crore  Twenty  Two  Lac  Fifty  Thousand)  only which were supplied by the petitioner to the Central Medical Stores  Depot  (CMSD)  and/or  such  other  or further  order  or orders as to this Court may seem fit and proper.”

Facts necessary for disposal of the Rule Nisi, in short, are that the petitioner as a company incorporated under the Companies Act, 1994 is engaged in the business of importing different types of medical equipments. A novel coronavirus disease (in short, COVID- 19) was firstly identified in Bangladesh on 08.03.2020 when the healthcare system of the country was not fully prepared to tackle the pandemic situation. The Government, with a view to protect the population,  declared  countrywide  lockdown  on  23.03.2020.  The healthcare  service  providers  i.e.  hospitals,  doctors,  nurses  and other  staffs  throughout  the  country  were  in  severe  shortage  of necessary health safety equipments, such as- Personal Protective Equipment (PPE), Disposable Protective Mask, Goggles, Dead Body Carrying Bag, etc. Under such critical situation, Human Rights and Peace for Bangladesh (HRPB) filed Writ Petition No. 3817 of 2020 seeking  a  Rule  Nisi  to  be  issued  with  a  direction  upon  the respondents  including  the  writ  respondents  to collect/procure/purchase necessary health safety equipments on an urgent basis to ensure safety of patients, doctors, nurses, staffs during  the  treatment  of  COVID-19  virus.  After  hearing  the petitioner  and  the  learned  Deputy  Attorney  General  vide  order dated  22.03.2020  this  Division  was  pleased  to  issue  Rule  Nisi directing  the  writ  respondents  to  collect/procure/purchase necessary health safety equipments on an urgent basis to ensure safety of patients, doctors, nurses, staffs during the treatment of COVID-19 virus (Annexure-B to the writ petition). The Ministry of Health and Family Welfare in compliance of the aforesaid direction constituted a 05(five) member committee and also constituted an advisory committee consisting of 13(thirteen) members (Annexures- C  and  C-1).  The  respondent  No.4  namely,  Director,  Central Medicine Stores Depot in compliance of the aforesaid direction vide his  Memo  dated  27.03.2020  and  11.04.2022  requested  the petitioner  company  to  supply  10,00,000  (ten  lac)  pieces  of Disposable Protective Mask, 2,00,000 (two lac) pieces of Goggles, 1,00,000 (one lac) pieces of Disposable Protective Suit and 10,000 (ten thousand) pieces of Dead Body Carrying Bag on urgent basis to tackle the COVID-19 outbreak (Annexure-D, D-1 and D-2).

The  petitioner  company,  in  compliance  of  the  aforesaid requests,  supplied  1,00,000  (one  lac)  pieces  of  Disposable Protective  Suit  on  07.04.2020,  10,00,000  (ten  lac)  pieces  of Disposable Protective Mask on 12.04.2020, 1600 (sixteen hundred) pieces of Dead Body Carrying Bag on 28.04.2020 and 2,00,000 (two lac) pieces of Goggles on 13.05.2020. It is stated that the aforesaid equipments  were  duly  received  by  the  Central  Medical  Stores Depot. The petitioner company submitted its bills for the aforesaid equipments (Annexures-E, E-1, E-2 and E-3). On 03.05.2020 a negotiation meeting was held between the petitioner company and the Technical Evaluation Committee (in short, TEC) wherein the unit price of the aforesaid equipments was fixed at TK.27.50 per Disposable Protective Mask, TK. 1700.00 per Disposable Protective Suit, TK. 209.00 per Goggle on the basis of which the total price of the aforesaid equipments stands to TK. 24,22,50,000.00. But the respondents did not pay the price of aforesaid equipments which were supplied by the petitioner. Thereafter, the petitioner, vide his representations dated 03.02.2021 and 19.06.2022, requested the respondents to pay off the price of the aforesaid equipments but they did not pay any heed to the requests (Annexures-G and G-1).

Subsequently, the petitioner, vide his representation dated 28.03.2023, requested the respondent Nos. 2 and 4 to pay the price of the equipments which were supplied by him. But they did not make any payment (Annexures-H and H-1). In such circumstances, on  29.03.2023  the  petitioner  sent  legal  notice  requesting  the respondents  to  make  payment  of  the  price  of  the  aforesaid equipments. But they did not pay any heed to the legal notice (Annexure-I).

Under  such  circumstances,  the  petitioner  has  filed  the instant writ petition in the form of mandamus, and obtained the Rule Nisi in the manner as stated hereinabove.

The respondent No.3, Director General, Directorate of Health, Mohakhali  filed  affidavit-in-opposition  denying  the  material statements made in the writ petition and contending inter-alia that delegation of financial power with regard to direct procurement method under the revenue head for one financial year has been provided in sections 36(D) and 68 of the Public Procurement Act, 2006 and also in rules 74(3), 75(Ka), 76(1) (T) and 76(2) of Public Procurement Rules, 2008 and its schedule-2. On the basis of the said provision the authority can purchase by direction procurement method upto the value of not more than Tk. 50,00,000.00 (fifty lac) but  in  a  special  circumstances  it  can  purchase  by  direction procurement up to the value of TK. 5,00,00,000.00 (five crore). It is further  stated  in  the  affidavit  in  opposition  that  the  claim  of recovery of money cannot be the subject matter of the writ petition and  the  writ  Bench  has  no  jurisdiction  to  give  a  direction  for payment of particular amount unless the same is both admitted a statutory payment. In this respect he has relied upon the case of Chairman BWDB Vs. Shamsul Huq and Co. Limited and others, 51 DLR(AD)169. Hence the Rule Nisi is liable to be discharged.

Upon placing the writ petition and supplementary affidavit Mr. Mahbub Shafique appearing along with Mr. Sifat Mahmud, the learned Advocates for the writ petitioner submits that the petitioner in compliance of the requests of the respondents, has supplied the aforesaid medical equipment during novel coronavirus(COVID-19) pandemic  and  there  is  no  dispute  about  receiving  the  said equipment. The petitioner submitted the bills for the equipment but they did not make any payment of the same. He further submits that  the  respondents  sat  in  several  meetings  and  internal correspondences were made with regard to the payment of the bills. The Ministry of Finance has already allocated the funds to the Central  Medical  Stores  Depot  for  disbursing  the  bills  to  the suppliers. But they did not pay the bills of the petitioner and as such, he sought direction from this Court to ensure payment of the bills. Referring to the case of Ministry  of Communications and others  Vs.  Panaki  Chowdhury,  7  ALR  (AD)  149  Mr.  Mahbub Shafique, the learned Advocate also submits that the petitioner is entitled to get the entire bill amount and as such, he prayed for making  the  Rule  Nisi  absolute  with  a  direction  upon  the respondents  to  pay  the  bills  amount  to  the  petitioner  for  the equipment supplied by him.

Mr.  Bepul  Bagmar,  the  learned  Deputy  Attorney  General appearing on behalf of the respondent No.3 submits that the High Court Division under the writ jurisdiction is not a Court for the recovery of money and it has no jurisdiction to give a direction for payment of a particular amount of money to the writ petitioner unless the same is both an admitted amount as well as a statutory payment. In support of his contention the learned Deputy Attorney General has relied upon the case of Chairman, Bangladesh Water Development  Board  and  another  Vs.  Shamsul  Huq  and  Co. Limited  and  others,  51  DLR  (AD)  169.  Accordingly,  he  also submits  that  there  being  no  statutory  contract  and  the  bills amount  is  not  an  admitted  amount  the  writ  petition  is  not maintainable and the Rule Nisi is, therefore, liable to be discharged.

Mr. Syfuzzaman, the learned Advocate appearing on behalf of the respondent No.4 has adopted the submissions so made by the learned Deputy Attorney General and thereby, he has prayed for discharging the Rule Nisi.

We have considered the submissions advanced by the learned Advocates  for  both  the  parties,  perused  the  writ petition,supplementary  affidavit,  affidavit-in-opposition  and  all other connected papers annexed thereto as well as the decision cited  above  and  relied  upon  by  the  writ  petitioner  and  the respondent.

On perusal of the writ petition it appears that the petitioner, in compliance of the requests made by the respondents during the novel coronavirus (COVID-19) pandemic, has supplied the medical equipment which were received by them vide Annexures- E, E-1 to E-3  to  the  writ  petition.  The  petitioner  submitted  his  bills amounting  to  TK.24,22,50,000.00.  It  further  appears  that  the purchase of the equipment is the government purchase. As per the provision of the PPA, 2006 and the PPR, 2008 the Government is to go  through  certain  provision  of  law  to  purchase  the  goods. Admittedly, there was no statutory contract with regard to supply of the aforesaid equipments. It also appears from the record that the  Ministry  of  Finance  vide  his  Memo  dated  12.04.2021  gave sanction of certain amount to meet the payment of the bills for the goods procured during novel coronavirus (COVID-19) pandemic. But in the said Memo the Ministry attached certain conditions to follow the provisions of the PPA, 2006 and the PPR, 2008 in case of spending money from the allocated fund. As per schedule-2 of the PPR,  2008  in  case  of  emergency,  any  purchase  by  direct procurement can be made but not more than TK. 50,00,000.00. But in a special case such purchase can be made up to the value of TK.5,00,00,000.00 (five crore) subject to approval of the Ministry. It appears  that  the  petitioner  submitted  bills  amounting  to  TK. 24,22,50,00,000.00  and  with  regard  to  the  payment  several internal correspondences were made but no fruitful solution has yet been made. Eventually the petitioner supplier moved this Court by filing writ petition in the form of mandamus for direction upon the respondents to pay the outstanding bills of the petitioner.

By filing affidavit-in-opposition the learned Deputy Attorney General has raised a legal question that since the Rule Nisi involves recovery of money and since the Appellate Division has already settled  the  point  that  the  High  Court  Division  under  its  writ jurisdiction  is  not  a  court  for  recovery  of  money  and  has  no jurisdiction to give direction to pay the money. Therefore, the Rule Nisi is liable to be discharged.

This kind of matter has already been settled in the case of Chairman, Bangladesh Water Development Board and another Vs. Shamsul Huq and Co. Limited and others, 51 DLR(AD)169. In  that  case,  the  Appellate  Division  held  that  the  High  Court Division in its writ jurisdiction is not a Court for the recovery of money and has no jurisdiction to give a direction for payment of a particular  amount  of  money  to  the  writ  petitioner,  unless  the amount claimed is both an admitted amount as well as a statutory payment.

In  this  case  there  was  no  statutory  contract  between  the parties. In view of the above decision of the Appellate Division, we do not have any alternative but to subscribe the same view in the facts and circumstances of the present case.

With regard to the decision referred by the learned Advocate for the petitioner in the case of Ministry of Communications and others Vs. Panaki Chowdhury 7 ALR (AD) 149 it appears that in that case the respondent authority had made part payment of the submitted bills and for want of necessary funds they could not pay the rest of the amount of bills. As such, the High Court Division as well  as  the  Appellate  Division  interfered  with  the  matter  and directed the respondent to give the rest amount of the bills.

But in the present case, the scenario is completely different from the above case. No payment of whatsoever has been made and there was no statutory contract in between the parties. As such, the  decision  referred  above  by  the  learned  Advocate  for  the petitioner is not applicable in the facts and circumstances of the present case.

Be that as it may, we want to make a note that there is no dispute with regard to the delivery of the medical equipment. The petitioner participated in the combat to manage and control the outbreak of novel coronavirus (COVID-19) throughout the country by supplying the medical equipment in compliance of the requests made by the respondents. So, the petitioner being the supplier is entitled to get the bills amount from the respondents. It is also fact that there was no statutory contract. So, the payment of the bills is not a statutory

payment, rather it involves with policy decision of the Government- how the issue of payment can be resolved. In view of the principle settled  in  51  DLR  (AD)  169,  the  petitioner  does  not  have  any remedy  before  the  writ  jurisdiction  for  recovery  of  the  money. However, it appears that several negotiation meetings and internal correspondences were made regarding the issue. But they did not reach  its  finality.  Since  the  present  writ  petition  is  not maintainable, the petitioner may have liberty to file an application before  the  Review  Panel  of  the  Bangladesh  Public  Procurement Authority (the BPPA) or any other appropriate forum to redress his grievance in accordance with law, if so advised.

 In view of the above facts and circumstances, the Rule Nisi is liable to be discharged.

In  the  result,  the  Rule  Nisi  is  discharged  with  the  above observations.

 This judgment will not operate as a bar to take decision by any authority or Court.

However, there will be no order as to costs.

Communicate the order.

K M Zahid Sarwar, J.

I agree.